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I remember a case I worked on a few years ago at a big San Francisco law firm
where our client was caught up in litigation over an easement across her
property. When our client initially visited
the property before purchase, she saw her neighbor walking across her
driveway. She asked the real estate
agent to get that neighbor’s signature acknowledging no right to an easement
across the property (which the neighbor had enjoyed for years with the previous
owner). The neighbor signed the letter
and the client purchased the house. After moving in, our client physically
blocked off her neighbor’s access to the driveway with a very large tool shed.
Enraged and insulted, the neighbor sued for right to an easement. They spent years and hundreds of thousands of
dollars in litigation. At no point in
the dispute did they speak to one another face-to-face.

Let’s be honest – if we tried really hard, could we come up
with a more dysfunctional way to communicate amongst ourselves than via
motions, discovery requests, and the occasional outraged, attorney-to-attorney
letter?

It is ironic. Clients
come to us with a problem. Technically, at the center of the maelstrom is a
legal issue. But swirling around that point of law is a storm of emotions –
anger, frustration, disappointment, anxiety, etc. And even when it is about money, it is not
just about money. Money is highly symbolic. It represents security, prestige,
respect, acknowledgment of harm done, and the desire to be made whole.

What got me excited about mediation was the possibility of
fundamentally changing the way aggrieved parties seek damages. Instead of running from conflict, or hiring
someone to wage our battles for us, we can find a safe space to re-engage, seek
understanding, find power, and earn respect.
Instead of duking it out through discovery and motions, we can discuss
the problem in more commonsensical and personal notions of what it means to be
harmed. Instead of assigning just a
dollar value to our harm, we can allow parties to define and experience deeper,
and perhaps emotional, components to their restitution.

This vision seemed to be reinforced by my law school courses
and subsequent CLE trainings for budding mediators, which all seemed to teach
the same understanding-based approach, namely, that the mediator should use an
open session to facilitate direct, continual communication between the parties
with the goal of unearthing issues, interests and emotions. The idea is that by
addressing the parties' frustration, anger and pain, the mediator allows for
catharsis and a communicative transformation that paves the way toward a
creative and viable solution. Rarely have I seen that approach used in practice.

For example, I participated as an advocate at a JAMS
mediation where the issue was a commercial lease dispute between a
trust-landlord and a vineyard-tenant. As is the norm, after a perfunctory open
session where the lawyers stated their positions, the mediator/retired judge
put the parties in two separate rooms and ferried back and forth, evaluating
the strengths and weaknesses of the cases and soliciting settlement proposals.
A couple of times, my client said to the mediator: “I was really insulted by
the letter the tenant’s lawyer sent me accusing me of being grossly unfair. I have
had a long history with this tenant where I have tried to be accommodating, and
it hurt my feelings.” The mediator never
invited the other party in to process those emotions or discuss repairing the
relationship. Moreover, when I cornered the
mediator in the hallway and pointed out the utility of doing so, he looked at
me with an attentive but blank stare. We
didn’t settle. [To his credit, he did
say to me afterwards: “I would really like to get together some time and talk
about this whole ‘processing of emotions’ thing.”] I wanted to refer him to Gary
Friedman, a well-respected mediation trainer in Marin. Gary encourages parties
to speak about difficult emotions that have been part of the original conflict (and
subsequent litigation process). Speaking about difficult emotions gives both
parties a fuller understanding of how the conflict evolved, allows for a more
meaningful dialogue about what is important to them going forward, and gives
them a formative experience that they can carry over into life.

I recently mediated a family law matter in which divorced
parents returned to me after the father stopped paying child expenses (in clear
breach of the marital settlement agreement I had mediated a year earlier). Following the parties lead, we spent the
first hour and a half processing lingering resentments from the marriage and
dissatisfaction with current parenting roles. The father felt that, during the
marriage, he wasn’t valued as a partner but only as a financial provider. These feelings of exclusion and lack of
appreciation around his role as a parent were surfacing once again in their
post-divorce relationship. During the mediation, his ex-wife articulated her
perceived sense of abandonment by him after their daughter was born. Her feelings that she was not getting enough
physical and emotional support from him in caring for their daughter led to
resentment and distance. He, in turn,
described how, during that first year of their daughter’s life, he was
struggling to balance his economic and professional responsibilities and his
need to spend time with both his new family and a son from a previous marriage.
He felt that she did not appreciate his commitment and efforts to do the right
thing by everyone and, instead, got angry at him and pushed him away. And now, as the co-parent without primary
custody, he was feeling excluded once again in important decisions related to
their daughter.

The majority of this session was structured to enhance
understanding and gain clarity. We did not problem solve around the issues they
raised, but rather focused on increasing empathy. And only toward the very end of our session did we turn to finances. After five minutes of hearing the mother’s
explanations about the reason for the increase in their daughter’s expenses, the
father said: “OK. I have heard enough. I get it now.” He cut her a check and walked
out the door. He has not missed a support payment since.

Obviously, family law is more prone to emotionality than
civil cases. But I would posit that every case has a significant, if not
critical, emotional component – and one whose resolution is crucial to the
overall settlement of the case. For example, the easement case cited above was
about interpersonal, not street, access.
In practical terms, not having an easement added one minute to the
neighbor’s walk to the street. But symbolically, the tool shed embodied the
message that “You are cut off!” from
good neighborly relations like she had with the previous owner. It was, therefore, a deep insult and
constituted a fight against the owner’s social message that “We will not be
connected.”

And the landlord in the commercial lease dispute felt that
her moral character had been unjustly impugned. She could not contemplate a continuing
business relationship with a tenant who viewed her in such a negative light.
She needed not only a lease agreement that was financially advantageous, but
the resolution of a slight that was detrimental to her self-image.

Even the sophisticated business client wants to resolve
issues on a deeper, more fundamental level than just the financial outcome. And I do not think it is presumptuous for
mediators to facilitate such an experience.
But I would posit that lawyers (particularly litigators) are not trained
to delve into emotions and are not practiced in holding difficult, if
respectful, conversations. And things
don’t suddenly shift when we become mediators.

Mediation can be a challenging and anxiety-provoking
endeavor. We all want to feel competent
in our trade, so we fall back on what we know -- evaluation and traditional
settlement-type negotiation. Asking
mediators to contain difficult conversations in an open session, or to delve
into emotional aspects, when that is not their strong suit, is a lot to
ask. Particularly when counsel for the
parties are also leery of those conversations and are pushing the mediator to
evaluate their case and facilitate
financial offers in a caucus dynamic.

When done well, the process of mediation, not just the financial outcome, makes the client whole. Through understanding-based mediation, anger can subside, relationships can be repaired or closure achieved, and clients can move on. Intelligent
minds can disagree about what is appropriate, or perhaps feasible, during
mediation and how our clients can best be served. But let’s at least not allow
our limitations to define our aspirations.